Dismissal of a request for attachment

Facts

The applicants requested the attachment of all assets of the defendant held at Bank L. Both the District Court of Zurich and the High Court of the Canton of Zurich dismissed the request for attachment.

By act of 10 April 2007, the applicants requested the annulment of the decision of the High Court and the attachment of all assets of the defendant held at Bank L.

The Federal Tribunal does not enter into the appeal.

Considerations

The Federal Tribunal considers that the decision on the request for attachment is a final decision within the meaning of Art. 90 FSCA, as it is made independently of the main proceedings and concludes the proceedings from a procedural point of view. When it dismisses the request, the civil appeal is open (Art. 72(2)(a) FSCA).

It must then be examined whether the attachment decision should be qualified as a final judgment on the merits, in which case the Federal Tribunal has full legal cognition (Art. 95 FSCA), or whether it is a provisional measure, in which case only the violation of constitutional rights can be invoked (Art. 98 FSCA). For this qualification, what is decisive is not the procedure in which the decision was rendered according to the applicable procedural law, but rather whether it definitively settles a question of law, on the basis of a complete assessment of the facts and the law, with the authority of res judicata, without reserving the decision in the main proceedings.

The Federal Tribunal considers that the attachment has only a security function and a provisional character. It does not produce any substantive legal effects and does not fulfill an autonomous regulatory function, but is limited to an official seizure anticipating the effects of the seizure decision, in order to secure subsequent access to the object of enforcement. It is therefore a provisional measure within the meaning of Art. 98 FSCA.

Therefore, only the violation of constitutional rights can be invoked in the…